LAW 497

LAW & POLITICS

(GROUP ASSIGNMENT)

PREPARED BY:

ENGKU NORSUHAILA BINTI ENGKU ZAIN

2019386615
MOHD YUSRI BIN AB MALEK
2019918091
MUHAMMAD YASSIN FARISI BIN ROZMAN
2019782917

GROUP: LWPLK5AX

PREPARED FOR:

YBHG DATO’ ISMAIL BIN BADIUZZAMAN

DATE OF SUBMISSION: 23 JUN 2020

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QUESTION 1

“The Constitution is not a mere collection of pious platitudes. It is the supreme

law of the land embodying three basic concepts: One of them is that the
individual has certain fundamental rights upon which not even the power of
the state may encroach. The second is the distribution of sovereign power
between the States and the Federation ... The third is that no single man or
body shall exercise complete sovereign power but that it shall be distributed
among the Executive, Legislative and Judicial branches of government,
compendiously expressed in modern terms that we are a government of laws,
not men”.

(HRH Raja Azlan Shah, 13th. April 2004, Kuala

Lumpur)

In light of the above statement, discuss and evaluate the concept of separation
of power as enshrined in the Federal Constitution.

The term “trias politica”1 or “separation of powers” was coined by Montesquieu the
French jurist, who lived in England from 1729 until 1731. He based his exposition on the
English constitution of the early eighteenth century as he understood it. He followed attempts
by Aristotle and Locks in dividing the power of government. His publication, Spirit of the
Laws, is considered one of the great works in the history of political theory and jurisprudence
He explained that, in order to prevent the abuse of powers, the power of the government
should not be left entirely to one body or person; instead it should be separated or divided in
some way. He went further and divided the power of government into three major functions.

These were law-making function (the legislative), law-applying function (the

executive) and law-enforcing function (the judicial). This separation of powers is perceived in
the United Kingdom among the Monarch, Parliament and the Court of Law. Separation of
powers, therefore, refers to the division of government responsibilities into distinct branches
to limit any one branch from exercising the core functions of another. The intent is to
prevent the concentration of power and provide for checks and balances.

Separation of Powers are also pillars of rule of law, where government by the law not
based in single power Monarchy alone could bring tyranny, aristocracy alone could bring
oligarchy, and Democracy could bring anarchy. Liberty exist not only from personal freedom
and rights but with limitations in accordance to law so there would not be abuse of powers
on other individual liberty as Lord Acton says power corrupts and absolute power corrupts
absolutely. A government may be so constituted, as no man shall be compelled to do things

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to which the law does not oblige him, nor forced to abstain from things which the law
permits. This is the importance of check and balance.

The importance of the theory of separation of power may include;

(i) Protection of liberty and rights, the theory of separation of powers protection
to the liberty and rights of the individual, and protects him from different of
dictatorship and oppression.
(ii) Increase in government's efficiency, as powers are distributed among the
government departments, these departments gain deep knowledge of the
matters they with, and become more efficient.

(iii) Limited government, as powers are distributed among different depart these
departments enjoy only limited powers. This prevents rise of dictatorship.

(iv) Prevents abuse of power, separation of powers accompanied by check and

balance is an effective check against abuse of power and arrogance of
power.

This theory, though adopted by most countries, has not escaped criticism. It has
criticized not only as impossible but also as undesirable. The theory of separation of powers
has been criticized on the following grounds.

(i) Wrong reading of British system. By the time Montesquieu developed his
theory of separation of powers, there had come into being the Cabinet system
of govern". There was not in Britain then separation of powers. On the
contrary, there was 'concentration of responsibility.' Having witnessed the
British people enjoying liberty, Montesquieu wrongly concluded that in Britain
there was separation of powers. He misread British politics.

(ii) Not fully possible. This theory is not fully possible. The executive has some
role in rule-making, and the legislature also performs some judicial functions.
For example, impeachment which is judicial in nature is done by the
legislature.

(iii) Administrative complications, separation of powers results in administrative

complications. It becomes difficult to forge cooperation, coordination and
harmony among the organs of government. The smooth working of modem
governments demands not so much separation of powers as 'co-ordination' of
powers.

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 (iv) Confusion and deadlock, separation of powers leads to jealousy, suspicion
and friction among the organs of government. While producing disharmony
and confusion, it may paralyze the administration. As a result, the
administration often fails to take quick decisions even at a time of crisis.

(v) Inequality of powers, this theory is based on the principle of equality of

powers, but this principle also is flawed. In the parliamentary system, the
legislature which represents the people is most powerful while the executive
is most powerful in the presidential system.

(vi) Not the Sole Factor of Liberty, separation of powers may contribute to liberty,
but it is not the only factor of liberty. Liberty also depends a lot on the psyche
of people, their outlook, their political awareness, customs and traditions,
fundamental rights, rule of law, independence of judiciary and economic
equality.

(vii) Balance Disturbed: The government, performing various important functions,

has become increasingly powerful. Besides being the problem-solver and
crisis-manager, it is also required to provide welfare to people. All this has
made the executive very powerful, and disturbed the balance among the
three organs of government. Planning, security and welfare demand not so
much separation of powers as their 'fusion'.

Concept of separation of power as enshrined in the Malaysia Federal Constitution.

Malaysia is a country that practices parliamentary democracy and constitutional

monarchy after Tunku Abdul Rahman and his teams achieved independence from British on
31st August 1957. The structure of government in Malaysia is very similar to Great Britain as
previously the Peninsular of Malaysia was a former British Colony and prior to its
independence a commission was appointed to draft the Federal Constitution based on the
system of parliamentary democracy as practiced in Great Britain. The Federal Constitution
divides the structure of government into three different braches which are legislature,
executive and judiciary. The concept is based on the theory of separation of powers
practiced in Great Britain. The purpose of separation of powers is to prevent conflict of
interest and abuse of power. The separate branches of government will be monitored one
another and stop any abuse of power if necessary. (Doctrine of Separation of Powers, 2013)

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 The separation of power in Malaysia is similar with English legal system in United
Kingdom. In Malaysia, Prime Minister must come from the Dewan Rakyat and it is a definite
mandatory as a democratic country. In other words, Prime Minister must be chosen from the
members of Parliament unlike the election in United States.

In Malaysia, Yang di-Pertuan Agong (YDPA) is the ceremonial executive is an

integral part of the parliament and also stands as monarchy power thus becoming integral
part of separation of power in Malaysia. The cabinet is appointed by YDPA with the
consultation and advice of the Prime Minister in order to rule and run the country better.
Although the system practiced in Malaysia is similar to United Kingdom, however it is
important to take note that the Federal Constitution clearly stated the functions of three
major sections of government. Doctrine of separation of powers in Malaysia is stated clearly
in the Article 121 (judiciary), Article 44 (legislative), Article 39 (executive) of Federal
Constitution. (Liyana, 2011)

Article 121: Judicial Power of the Federation is to affirm the doctrine of separation
of powers to ensure the sovereignty of the judicial arm of government is inseparably infused
within the basic structure of the Constitution. Article 44: Constitution of Parliament is the
legislative authority of the federation vested in the parliament which shall consist of the
YDPA and two houses of parliament which are known as Dewan Negara and Dewan
Rakyat. Article 39: Executive authority of Federation shall be vested in YDPA and subject to
the provisions of any federal law, by him or by the Cabinet or any Minister authorized by the
Cabinet, but parliament may by law confer executive functions on other persons. (The
Judiciary and the Lost Doctrine of Separation of Powers)

Administration in Malaysia follows constitution supremacy which means everything

must be practiced and followed in accordance with constitution only and anything in contrast
will be declared null and void. Constitution followed as tradition even when it comes to
fundamental rights and liberties hence there is no separate Bill of rights in Malaysia as Bill of
Human Rights Act 1998 in England. The fundamental rights of an individual are guaranteed
in second part of Federal Constitution and this means it cannot be altered in the ordinary
way but requires two thirds of majority of the total numbers of legislature. (Mizan, 2016)

Visibly this may seem absolute and fundamental rights and liberties of individual are
secure in hands of Constitution but in reality only some of them are while others are
subjected to various qualifications which make them more illusory than in reality. For
example Article 8 of Federal Constitution which gives every citizen freedom of speech,
peaceful assembly and association but Parliament may impose certain restrictions in the
interest of security, public order or morality. Parliament also has amended the Sedition Act
1948 and made it an offence to question the sovereignty powers and prerogatives of rulers,

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Malay as national language, the special position of the Malays and natives of Sabah and
Sarawak and the legitimate interest of other communities. This restriction also extends to
Parliamentary speeches which earlier enjoyed absolute immunity and visible with adding of
new clause (4) to article 63 of federal constitution. There is also case of Mark Koding v
Public Prosecutor [1982] shows limitation caused to Article 63(2) by new clause (4).

Meanwhile, in the case of Kok Wan Kuan v PP [2007] 5 MLJ, the question of
separation of powers was raised and dealt quite exhaustively. In this case the appellant has
challenged his detention during the pleasure of the YDPA pursuant to Section 97(2) of the
Child Act 2001. It was argued that the power to impose punishment in a criminal case is a
judicial matter, and Section 97 is trying to vest the judicial power of punishment into the arm
of the Executive and consequently contravene the doctrine of separation of power. The court
in upholding the conviction against the appellant had set aside the sentence against him and
held that the doctrine of separation of power is very much integral to the Federal
Constitution. The court held that Section 97(2) is clearly contravenes the doctrine of
separation of powers by consigning to the executive the judicial power to determine the
measure of the sentence that was to be served by the appellant

Violation of separation of powers is visible on the later part of check and balances, as
problem always arises when declaration of emergency must be done solely by YDPA using
his discretionary powers or with the advice of government and is there requirement for check
and balances by Him? This are the question provoked in the case of Stephen Kalong
Ningkan v Government of Malaysia. This issue of justifiability seems settled with
amendment done by insertion of Clause 8 under Article 150 of Federal Constitution which
gives authority to YDPA’s decision making it final and conclusive but it also stipulated that it
shall not be challenged or called in question in any court on any ground.

Following the amendment Federal Court Judge Haidar in the case of Dato Seri
Anuar Ibrahim v Public Prosecutor, said that no challenge could be made to be continued
operation of ordinances made under Article 150 even it may be argued such provision would
amount to closing the doors of the court and therefore harsh and unjust. He also suggested
that it should be addressed to legislature not the courts that disagreed with such provision.
Thus, it seems A.V. Dicey’s visions on constitutional principles are creature of the judiciary
decision especially to protect individual rights and liberties may not be welcomed in
Malaysia.

In a nutshell, Malaysia applies the doctrine separation of power in a liberal manner as

there is interference of one branch to another; however, the sense is restricted by the
system of check and balances to avoid the abuse of power from any branch of government
as according to Lord Acton, absolute power corrupts absolutely. There is no absolute

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separation of powers in the concept of Parliamentary Democracy. The Executive is the most
powerful. The Executive and Legislative bodies are in the same boat. The purpose of the
separation of powers, which is to balance and limit government power, in order to prevents
one person or group of people from accumulating or using too much power cannot be apply
at all. This is because Malaysia legal system is a constitutional monarchy and a
Parliamentary democracy and Federal Constitution.

QUESTION 2

“An independent, impartial judiciary; the presumption of innocence; the right

to a fair and public trial without undue delay; a rational and proportionate
approach to punishment; a strong and independent legal profession; strict
protection of confidential communications between lawyer and client; equality
of all before the law; these are all fundamental principles of the Rule of Law.
Accordingly, arbitrary arrests; secret trials; indefinite detention without trial;
cruel or degrading treatment or punishment; intimidation or corruption in the
electoral process, are all unacceptable. The Rule of Law is the foundation of a
civilised society. It establishes a transparent process accessible and equal to
all. It ensures adherence to principles that both liberate and protect. The
International Bar Association calls upon all countries to respect these
fundamental principles. It also calls upon its members to speak out in support
of the Rule of Law within their respective communities”.

(Resolution passed by The Council of the International Bar Association

passed in 2009).

(a) With references, briefly discuss the fundamental principles of the Rule of
Law?
(20 marks)

The 'rule of law' is widely accepted to be a critical part of an effective constitution; its
principle function is to constrain government action. There is a significant disagreement
initially on how to define the rule of law. The rule of law has been referred to as a ‘wrapper’

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that is placed around a bundle of constitutional principles. At one extreme, the rule of law is
merely a rhetorical device or a political philosophy and its content is unimportant (the
content-free view). At the other extreme, the rule of law determines the validity of law and so
laws that conflict with its principles are invalid (content-rich view).

The rule of law is defined in the Oxford English Dictionary as: "The authority and influence of
law in society, especially when viewed as a constraint on individual and institutional
behavior; (hence) the principle whereby all members of a society (including those in
government) are considered equally subject to publicly disclosed legal codes and processes.
The term "rule of law" is closely related to "constitutionalism" as well as "Rechtsstaat", and
refers to a political situation, not to any specific legal rule.

The rule of law implies that every person is subject to the law, including people who are
lawmakers, law enforcement officials, and judges.In this sense, it stands in contrast to
tyranny or oligarchy where the rulers are held above the law. Lack of the rule of law can be
found in both democracies and monarchies, for example when there is neglect or ignorance
of the law. The rule of law is more apt to decay if a government has insufficient corrective
mechanisms for restoring it.

Ideas about the rule of law have been central to political and legal thought since at least the
4th century BCE, when Aristotle distinguished “the rule of law” from “that of any individual.”
In the 18th century the French political philosopher Montesquieu elaborated a doctrine of the
rule of law that contrasted the legitimate authority of monarchs with the caprice of despots. It
has since profoundly influenced Western liberal thought.

In general, the rule of law implies that the creation of laws, their enforcement, and the
relationships among legal rules are themselves legally regulated, so that no one—including
the most highly placed official—is above the law. The legal constraint on rulers means that
the government is subject to existing laws as much as its citizens are. Thus, a closely related
notion is the idea of equality before the law, which holds that no “legal” person shall enjoy
privileges that are not extended to all and that no person shall be immune from legal
sanctions. In addition, the application and adjudication of legal rules by various governing
officials are to be impartial and consistent across equivalent cases, made blindly without
taking into consideration the class, status, or relative power among disputants. In order for
those ideas to have any real purchase, moreover, there should be in place some legal
apparatus for compelling officials to submit to the law.

Not only does the rule of law entail such basic requirements about how the law should be
enacted in society, it also implies certain qualities about the characteristics and content of
the laws themselves. In particular, laws should be open and clear, general in form, universal
in application, and knowable to all. Moreover, legal requirements must be such that people

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are able to be guided by them; they must not place undue cognitive or behavioral demands
on people to follow. Thus, the law should be relatively stable and comprise determinate
requirements that people can consult before acting, and legal obligations should not be
retroactively established. Furthermore, the law should remain internally consistent and,
failing that, should provide for legal ways to resolve contradictions that can be expected to
arise.

The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the
time of King James I. Coke was the first person to criticise the maxims of Divine Concept. He
strongly believed that the King should also be under the Rule of Law.

The term “supremacy of law” was first introduced by Professor Dicey, one of the most
outstanding constitutional lawyers. In England, Professor A.V. Dicey developed a concept
on rule of law from Edward Coke’s concept in a classic book ‘The Law Of The Constitution’
published in the year 1885. Dicey’s theory of law formed from three concepts of principles.
These three concepts are:

i- No man could be lawfully interfered or punished by the authorities except for

breaches of law established in the ordinary manner before the courts of land.

This indicates that in England, nobody can be thrown into the jail if no law has been broken.
Unless a law is broken, neither a person nor his or her goods can be lawfully made to suffer.
Society is ruled by law. The governments can only do things that are authorised by or within
the law. It means the rule of law is contrasted with every system of government based on the
exercise by person in authority of wide arbitrary or discretionary powers of constraint.

The first sentence requires that laws under which people are condemned should be passed
in the correct legal manner and that guilt should only be established through the ordinary trial
process. This is an important principle, although it should be noted that nothing here speaks
to the content of the laws which an individual will have to face when taken before the courts.
The meaning of the second sentence is more problematic. The word 'arbitrary' could connote
a clear law, which was properly enacted by Parliament, but which might nonetheless be
regarded as arbitrary if it was thought to infringe certain fundamental rights, or if it entailed
excessive punishment. The word 'arbitrary' could alternatively be used to describe a law
passed in the correct legal manner, but where it was very vague or unclear, with the result
that individuals had no real idea how to plan their lives in the light of the relevant legal rule.
This sense of arbitrariness is independent of whether the content of the legislation was just
or unjust.

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Dicey stated that equality under the rule of law entitles everyone to the protection of ordinary
law and the need to be answerable to the same law. Government must also respect the law
and no one is above the law and society must be governed by law and that all must be
equally subject to the law. This is supported by Article 8(1) of Federal Constitution which
include equal treatment, equal protection and prohibition against discrimination. This is
illustrated in the case of Public Prosecutor v Tengku Mahmood Iskandar, respondent was
convicted for causing the death of a golf caddy as he was playing golf in the Cameron
Highlands. Since he was the son of Sultan of Johore, sentence was reduced. But the
decision was bound over and heavy punishment was given. Every person shall be treated
without prejudice in the eyes of law regardless of their status or rank. Everybody is subjected
to the same law to minimize tyranny.

ii- No man is above the law and everyone, whatever his condition or rank is, is
subject to the ordinary laws of the land.

This means that everyone is equal and not based on classes if they break the law. Everyone
will be charged equally to the same law and be subject to the same law courts. Governments
and citizens will obey the same law and no specialty will be given to anyone.

This formulation is concerned primarily with equal access to the courts, not with the nature of
the rules which individuals find when they get there. It is true that Dicey was explicitly against
officials being accorded any special privileges, but beyond this Dicey's second principle does
not take one very far. He showed little concern with the role of law in deciding whether
different rules applicable to different groups were defensible on the ground that that there
was some rational justification for the difference in treatment.

It was supported in the case of Public Prosecutor Datuk Harun Bin Idris which regard on
allegations of misconduct and corruption exist. The case was transfer directly from lower
court to high court based on Section 418A of CPC. Datuk Harun claimed this was unfair
because the action was taken without ‘preliminary enquiries’ from him. It was held by the
Federal Court that Sec. 418A is valid because Art. 145(3) grants power to the AG to transfer
cases from one court to another. Unnecessary discretionary power must be eliminated in
order to provide for an effective confinement of such power. Raja Azlan Shah in Pengarah
Tanah Galian v Sri Lempah stated that a discretionary power should be exercised
reasonably and with a purpose, and that every discretionary power must not be free from
legal restraint. This case impose positive discrimination.

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 iii- The result of the ordinary law of the land is constitution.

The rule of law indicates that the general principles of the constitution are the result of
judicial decision of the courts in England. Right such as right to speak in public, freedom to
organize a public meeting and right to vote are guaranteed by a written constitution in most
countries but in England, it is not so. Those rights are the result of judicial decisions in cases
which have actually arisen among the parties. The consequence of the rights of every
individuals are the source but the constitution is not. Therefore, Dicey emphasized the
importance of the role of the courts of law as gruantors of liberty.

This third limb of the rule of law is ambiguous. It might be read to mean that a society must
possess certain individual rights if it is to conform to the rule of law. The alternative reading
was that if you wished to protect such rights then the common law technique was better than
that employed on the continent. Dicey dealt in detail with the precarious protection of rights
on the continent, where constitutions enshrining rights would often be abrogated at the
stroke of the pen or the point of a sword. He felt that in the UK, where individual rights were
the result of numerous judicial decisions indicating when the individual was at liberty to
speak freely etc, it would be considerably more difficult for an authoritarian regime to sweep
these rights aside.

However in the case of Ah Thian v Government of Malaysia, with focus on the observation
of Suffian LP. His Lordship observed that “The doctrine of Parliament does not apply in
Malaysia. Here we have a written constitution. The power of Parliament and State
Legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they
please. Under our Constitution, written law may be invalid on one of these grounds: (1)
Article 74; (2) in the case of both Federal and State written law, because it is inconsistent
with the Constitution; (3) Article 75″.

The formulation of the rule of law is founded by A.V. Dicey over 100 years ago. It is therefore
not surprising that his theory is used as a reference in the rule of law of many countries
around the world nowadays. However, several criticism have been made against Dicey’s
theory of rule of law.

(b) Explain the separation of powers.

Since achieve independence from British on 31 August 1957, Malaysia practices

Parliamentary Democracy and Constitutional Monarchy.8 What is practised in Great Britain
is very similar to the structure of government in Malaysia. This is due to the fact that Malay

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Peninsular, as Malaysia was previously known, was a former British Colony. The structure of
government is divided to three different branches by the Federal Constitution, that is
Legislature, Executive and Judiciary. 9 The concept is based on the theory of “separation of
powers” as practised in Great Britain.

The reason behind the existence of Separation of Powers is that when a group or person
has a huge amount of power, they can become dangerous to the society and citizens. If a
single group shared all three powers, they would be a dictatorship and have unlimited power.
They could do anything they like without been questioned. The Separation of Power is a
method of reducing the amount of power in any group’s hand, hence making it harder to
abuse and used in a wrong method.

Legislature

Briefly, legislation is enacted by Parliament by introducing a Bill which is passed by both

Dewan and approved by Yang di-Pertuan Agong. There are three types of Bill – Public Bill,
Private Bill and Hybrib Bill.

There are two main stages in the legislative process: pre- Parliamentary and Parliamentary.
In Pre- Parliamentary Stage, it covers the government proposal, meetings between relevant
authorities, drafting of Bill by Parliamentary Draft person and Cabinet approval of Bill. After
approval by the Cabinet, the Bill is ready to be introduced into the Parliament.11

The Minister responsible for the subject-matter introduced the Bill into Parliament. When it
has been passed, after debate and voting, by the Dewan Rakyat, it is referred to the Dewan
Negara where it goes through the same processes. In each Dewan, the Bill goes through
four processes – First Reading, Second Reading, Committee Stage and Third Reading.
Once the Bill is given to the Royal Assent, it becomes an Act. Act comes into force when it is
published.

Executive

The Executive consists of the apparatus of Government, principally: the Cabinet, the public
service, the police force and the armed forces.12 Since Independence in 1957, Malaysia’s
executive arm, because of its control of Parliament, has always been the strongest and
dominant branch. The power of the Yang di-Pertuan Agong strengthened executive
dominance, acting on the advice of the Cabinet, to suspend the constitution or laws of the
federation or state if he is satisfied that a grave emergency exists.13

Judiciary

Heavily influenced by the British Common Law and to a lesser extent Islamic law, the
Judiciary of Malaysia is largely centralized despite Malaysia’s federal constitution and is

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mostly independent from political interference. The highest court in Malaysia, the Federal
Court reviews decisions referred from the High Court of Peninsular Malaysia, the High Court
of Sabah and Sarawak, and subordinate courts. Yang di-Pertuan Agong, which is the lord
president of the Federal Court, has original jurisdiction in disputes among states or between
a state and the federal government. The Malaysia Judiciary is headed by the Chief Justice,
while two Chief Judges head the High Courts in Peninsular Malaysia, Sabah and Sarawak.

The judiciary functioned with a high degree of independence. Most civil cases and all serious
criminal cases have jurisdiction by High courts. The session courts hear the cases involving
car accidents and landlord- tenant disputes. Magistrates’ courts hear criminal cases in which
the maximum sentence does not exceed 12 months. The Court of Appeals has jurisdiction
over high court and sessions court decisions.

In conclusion, it would seem so in Malaysia, the fundamental principle of constitutional

supremacy that was brought to life under Article 4(1) that embeds the doctrine of rule of law,
can only be maintained and achieved through judicial creativity in methods of interpretation
of certain constitutional provisions which are regarded as a deterrent to the spirit of
constitutionalism and the rule of law. It is about time for the Malaysian courts to shift from
their reluctant attitude towards striking down legislation of the parliament, or even to the
point of challenging actions of the executive on the grounds of unconstitutionality.

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(b) Critically evaluate the role and functions of the Rule of Law in the context
of Malaysian political developments.
(30 Marks)

The Doctrine of Law, theoretically should be embedded at the very roots policy
constitutes in the Malaysia Federal Constitution. Certain of the terms spelled out in Federal
Constitution may not all applicable to practical manifestation rule of law. Reference need to
be made based on Reid Comission’s proposal on the rule of law as the foundation of
Malaysia country. Clearly, the establishment of Reid Commission is to adhere doctrine rule
of law, therefore, to assess viability of the policy made with reference to Federal Constitution
Part 2 which entrenched the very fundamental liberty provision proposed by Commission.

In context of political movement in Malaysia, the track record of any Ruling Party, it is
founded that most cases are to the extent of being neglected in exercising the said doctrine.
It is provided in Article 4, such the Constitution is the supreme law of the Federation, any law
passed after Merdeka Day inconsistent with this Constitution are void. Article 4 provides
subsequent to draft Article 3 (1) & 3(2) proposition from Reid Commission, clearly is
intended to be built under this very foundation of doctrine of law. The said provision are still
debatable based on theoretical and reality comparison embodies this fundamental doctrine
of law to be part and parcel of our legal system.

In terms of application of the doctrine in Malaysia, our Federal Constitution does not
represent as alienation from other constitution whether it expressly written or unwritten.
Having above-mentioned, the term “We are government of the laws not men” regarded by
our politician are to upholding the doctrine, recognized and accorded with respect. Although
arguments made through theoretical to application of rule of law are based on multiple
provisions. As prescribed by Dicey that rule of laws requires no one be punished except for
conduct which represents as clear breach of law. In the case of Mohamed Ismail v PP, the
defendants was charged with offence of drug trafficking under Section 39B(1) Dangerous
Drug Act 1952 may be punishable with life imprisonment or death. The on-going/pending
trial made during amendment for mandatory death penalty. It was held that, the enhance
provision made are not applicable to the said case as the offence committed after bill was

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passed. At such, the decision of the court was still in line with Article 7(1) of Federal
Constitution.

Furthermore, equality before the law of any classes to the ordinary law of the land
administered by the ordinary court. This can be referred to the case of Lee Gee Lam v
Timbalan Hal Ehwal Dalam Negeri, Malaysia & Anor where it was held that the statement in
regards of the grounds in the alternative form denied the detainee to know reason for his
arrest, a constitutional right for the people. The decision of the court are said to be consistent
with Article 5(3) of the Constitution. Additionally, government officials are subjected to
adhere with Constitution, therefore, as far the laws goes, officials are not exempted with the
laws, special powers, privileges, and protection.

By the virtue of Article 10(1)(a) Federal Constitution, provides freedom of speech,

assembly and association are the basis for the court to struck ‘7 speakers allowed’ as
presided in the case of Chai Choon Hon v Ketua Polis Daerah, Kampar & Government of
Malaysia, said that the permit has already specify time limit and aforementioned condition
were unnecessary. Abide with Article 4(1) of the Federal Constitution, the doctrine of
Parliament does not apply in Malaysia. Having written the Constitution, the power of
Parliament and State Legislature in Malaysia is limited by the Constitution and they cannot
pass any law are invalid as provided in Article 74(2) both Federal and State written law being
repugnant/ not in line with Article 75(3). Nevertheless, based on few cases as such Pihak
Berkuasa Negeri Sabah v Sugumar Balakrishnan, Tan Tek Seng v Suruhanjaya
Perkhidmatan & Anor, Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Anor, the law
implies natural justice and reasonableness as imperative elements due to process and equal
treatment. The courts have also suggested that arbitrary powers and harsh penalties are
violations of equality.

There is a distinctives differences between theoretical idea and reality or practice of

the said concept. In Malaysia context, our legal system embodies Dicey interpretation on
rule of law, however, proven throughout the years contained possibility of creating wide
exception on the them from very beginning despite of any political parties as ruling
government. Therefore, an ‘ideal’ constitution versus ‘real’ constitution more likely to
operates in cycle. Doctrine rule of law are not an absolute value as other fundamental comes
into play, the said doctrine is just of one many competing values. Article 4(1) may be basis of
doctrine rule of law, eventually certain features from the constitution itself incapacitate
doctrine rule of law. For instance, power in amendments conferred on Parliament in regard
of the constitution under Article 159 contrary to Article 150 provided that executive making
power whose advice Yang di-Pertuan Agong (YDPA) is bound to act. With regards to
unstable political movements vending favorable manifesto, our country made wide use of
emergency powers, sanctioned by the Constitution. A typical legal system to operates

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alongside with system that deals with times of emergency or turmoil. In the case of Phang
Ching Hock v PP came to decision that ‘rule of harmonious construction in construing Article
4 & Article 159 enables them to hold that Acts of Parliament made under conditions Article
159 are valid even repugnant with the constitution.

In relation with Article 159 made applicable to Malaysia legal system, Article 149 also
must not be neglected provided that empowers Parliament by getting simple majority
procedure to enact the laws to struggle against any intention to overthrow the current ruling
government. Consequently, legality is never questioned subject to limits guarantees of
freedom, personal liberty, freedom of speech, assembly or association and right to property.
Moreover, once YDPA declare emergency, Parliament are authorized to suspend any
provision contained in the Constitution, except for 6 topics provided in Article 150(6A). These
empowerment could potentially violate Article 5, 9, 10 and 13. For instance, any laws
embedded Article 149 are Internal Security Act 1960 and Dangerous Drugs (Special
Preventive Measure) Act 1985, where both allowed preventive detention. By latest
development of provision with regards to freedom of speech are restriction on free speech in
relation with ‘sensitive issues’ under Sedition Act 1948.

With reference to Article 150 Federal Constitution declaration of emergency by YDPA

conferred substantial discretionary power to legislative authority of Parliament. During time
of emergency, Parliament are vested to legislate any provision even it may contradict the
Federal Constitution. Furthermore, the ruling government are allowed to make laws without
undergo Parliament session under such circumstances. These power are not given under
normal circumstances, due to its inconsistency with doctrine rule of law. This can be
illustrated in the case of Eng Kok Cheng v PP where it was held that rights can be violated
not only by legislation, even by way of delegated legislation framed under authority of
emergency power. Moreover, approach adopted in Malaysia legal system shown reluctances
in invalidating statute made by Parliament on the ground of ultra vires or unconstitutional
indirectly resembles Parliament supremacy over Constitutional supremacy. Another case
can be referred to is Attorney General, Malaysia v Chow Thiam Guan, the court held that
‘the law may be harsh but the role of the courts is only to administer the law as it stands’.
The question whether the law is harsh are subject to parliamentary debate and not fit for
judicial decision.

The government had upholding the rule of law substantially should be acknowledged
and recognized due to the fact that there still loop-holes to improve as far the law can do by
conduct. Initiatives taken by government are Separation of Powers is the main factor
to uphold the rule of law, where government by the law not based in single power monarchy
alone could bring tyranny, aristocracy alone could bring oligarchy, and Democracy could
bring anarchy. Malaysia government consist of three separation of power, the legislative, the

16
executive inrespect to things dependent on the law of nature, and the executive in regard to
matters that depend the civil law. By virtue of the first, the prince of magistrate enacts
temporary or perpetual laws, and amends or abrogates those that have been already
enacted, by the second, he makes peace or war, sands or receives embassies, establishes
the public security, and provides against invasions, by the third, he punishes criminals, or
determines the disputes that arise between individuals.

Furthermore, the power of Parliament amending the constitution, even two-thirds

majority is neededdoes not mean the Parliament are authorized to pass the bill so long as
the authority being exercised and must take into consideration on reasonability of the law.
The efficacy of judiacial review regarded as test for the existence of the rule of law. The
position of judicial reform in terms of appointment context are imperative to the position of
the rule of law. This can be seen in establishment of Judiacial Appoinments Commission Act
2009 preserved by government initiatives embracing principle of the law. The Act provide
certain positive aspects requiered to achieve great idea of an independant Article 122AB of
the constitution. To reform in order to battle injustice of evil hands, judiciary itself must be
independant.

It can be concluded that in Malaysia as many other democratic countries, the written
contitution with express provision made to distribute powers to designated governing bodies.
Even, our King (YDPA) as head of the government the rule of law in Malaysia does
embodies the doctrine of constitutional supremacy of which conferring power and authority
for the people represent the country. Judicial power also plays an important role in upholding
the rule of law. Purposely, judiciary are to enforce the making of a limited government which
operate by means of constitutionalism and the doctrine rul of law. The media also must be
unbias, contribute to producing alimited government that respect rule of law. As all related
bodies operate in same vision to achieve justice, therefore, check and balance could be
conducted to prevent any imbalance distribution of power. The rule of law can only be
maintained and achieved through judicial creativity in methods of interpretationof certain
constitutional provisions.

Particularly in Malaysia, we might say that every citizen have a high sense of
toleration, where these could be seen during the time of transition ruling government in a
very favorable and peaceful way. Moreover, during recent pandermic outbreak despite of our
unstable political movement, yet together Malaysian people mitigate battling against Covid-
19 and manage to be recognized throughout the world as one of the best medical
healthcare. As Malaysian, we are proud to claim that Malaysia is our country and to keep in
mind that without the respect to the doctrine rule of law, the said democratic state will
eventually perished in short time frame.

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REFERENCES

A.L.R. Joseph, The Doctrine of Separation of Powers Survives in Malaysia,

[2007] Singapore Journal of Legal Studies 380-395, at 381.

Article 43, 43 (A), 43(B) and 43(C) of the Federal Constitution.

Article 121 (judiciary), Article 44 (legislative), Article 39 (executive) of Federal

Constitution.

Mark Koding v Public Prosecutor 1982

PP v Dato’ Yap Peng [1987] 2 MLJ 311

Internet Sources

www.businessdictionary.com

https://www.studocu.com/my/document/quaid-i-azam-university/lecture-notes-
the-separation-of-powers/898819/view

https://www.lawteacher.net/modules/public-law/the-rule-of-law/lecture.php
https://en.wikipedia.org/wiki/Rule_of_law
https://plato.stanford.edu/entries/rule-of-law/
Aristotle, The Politics (c. 350 BC), Stephen Everson (trans.), Cambridge: Cambridge University
Press, 1988.
http://www.sultanazlanshah.com/pdf/2004%20Book%202/Lecture_1.pdf
https://publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15115.htm
http://www.legalserviceindia.com/legal/article-85-development-of-the-rule-of-law.html

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